Medical Malpractice

Florida Arbitration Agreements Increasingly Common in Health Care

January 21, 2021 | by David J. Halberg, Esq.

Doctors, nurses and other healthcare providers in Florida have a professional and legal responsibility to provide care to patients according to the prevailing standard for their education, experience and position. When they fail to do so resulting in patient harm, they can be held accountable with a Florida medical malpractice claim. Verdicts and settlements are typically paid out by insurers. West Palm Beach medical malpractice lawyer

But in recent years, our West Palm Beach injury lawyers have noted a troubling trend of doctors and health care companies compelling patients to sign binding arbitration agreements before they receive care. Patients are given forms to sign away their constitutional right to have complaints of substandard care weighed in a court of law. If they decline, they are told to look for another provider.

It should be noted if you’re harmed as a result of substandard care, these agreements may not be enforceable, thanks to a 2016 Florida Supreme Court case. You should consult with an experienced medical malpractice law firm before deciding how to proceed. Continue reading

Filing a Birth Injury Lawsuit in South Florida

September 15, 2020 | by David J. Halberg, Esq.

For every 1,000 children born in the U.S., 1.9 suffer some type of birth injury, also referred to as birth trauma. The good news is this rate has fallen from about 2.6 for every 1,000 births since 2004, as the use of instruments like forceps and vacuums have become less common. filing a birth injury lawsuit

But if your child is one of those who has suffered some type of birth trauma, it’s important to talk with an attorney about filing a birth injury lawsuit. A baby who sustains injuries at birth can suffer lifelong consequences to one’s physical, cognitive, psychological and social development. If the cause was medical negligence, the child and his/her caregivers will need additional treatment (therapies, surgeries, special education, etc.) and other support.

Birth injury lawsuits are a type of legal action taken against the doctors, nurses or other medical professionals who may have been responsible for the child’s injuries, which can include conditions like:

Cerebral palsy
Erb’s palsy
Brachial palsy
Shoulder dystocia
Bruising or forceps marks
Fractures
Subconjunctival hemorrhage
Brain damage
Other nerve injuries
Wrongful death

What to Know When Filing a Florida Plastic Surgery Medical Malpractice Lawsuit

February 7, 2020 | by David J. Halberg, Esq.

A South Florida plastic surgeon facing a medical malpractice lawsuit in the 2016 death of one patient is now facing a new allegation of malpractice after another patient said a breast lift and tummy tuck left her scarred for life. NBC-6 Miami reports the second patient survived, but only after emergency surgery and multiple skin grafts. Doctors at the hospital told her if she had waited another day to have her wounds treated, she would have died. plastic surgery medical malpractice

The Florida Department of Health alleges the surgeon involved breached the standard of medical care expected of him by:

Failing to obtain a complete and comprehensive physical examination of the patient;
Failing to obtain a complete medical history of the patient;
Failing to see or contact the patient within 24 to 48 hours after surgery.

The surgeon does not agree with the allegations, and plans to fight them in court. He was already facing allegations of medical malpractice wrongful death involving a patient who died in 2016 while under his care at a now-closed Hialeah clinic.

When Plastic Surgeons Can Be Held Liable for Damage

Plastic surgery, also sometimes referred to as cosmetic surgery, are generally elective procedures undergone by those who wish to improve their personal appearance. In some cases, they are necessary to correct the after-effects of a serious accident or illness.

Plastic surgery is a field that is attractive to many physicians because it is so lucrative, particularly in high-income areas. However, as our West Palm Beach medical malpractice attorneys have seen, a doctor who does not have the proper knowledge, training, experience, staff or equipment to safely perform plastic surgery can cause serious harm. Continue reading

Military Families Can Now Sue for Medical Malpractice

January 6, 2020 | by David J. Halberg, Esq.

Active duty military members now have the right to sue for medical malpractice injuries after a December vote by Congress to enact a new provision to the National Defense Authorization Act. South Florida medical malpractice lawyer

As our South Florida medical malpractice attorneys can explain, long-held legal precedent has been that service members are prohibited from suing the Armed Forces for negligence during active duty that resulted in injury. This principle has come to be called “the Feres Doctrine,” after a watershed 1950 U.S. Supreme Court ruling in Feres v. U.S. It’s been used to toss dozens of cases of serious medical malpractice injury suffered by service members – or discourage them from filing any claim altogether.

The soldier for whom the doctrine is named was a highly-decorated WWII veteran who parachuted into Normandy during D-Day. He prevailed through some of the worst fighting of the war – but died in barracks fire while on base in the U.S. His widow filed a negligence lawsuit against the Army under the Federal Tort Claims Act for its negligence in causing the fire (unsafe due to faulty heating system). The ruling that resulted denied her – and countless other active-duty soldiers and surviving family members – from holding the U.S. government accountable for negligence that occurred during active duty. Continue reading

Florida Supreme Court to Weigh Hospital Liability of Independent Contractor Doctors

December 5, 2019 | by David J. Halberg, Esq.

The Florida Supreme Court has agreed to decide whether a hospital can be held accountable for the negligent treatment by independent-contractor emergency room doctors. Our West Palm Beach medical malpractice lawyers will be closely following the developments of this case, and a decision is likely to be handed down sometime next year.

The case stems from a botched plastic surgery provided at an unlicensed clinic by a man posing as a Venezuelan doctor. The clinic was licensed to give massages, but advertised the services of certified plastic surgeons (which it did not have) to perform buttocks-enhancement injections. A 28-year-old woman was rushed to a local emergency room after suffering complications from the procedure in 2013. She was treated at the hospital’s emergency room and in the intensive care unit, but died within hours. The “doctor” was later arrested and the clinic shuttered, but her estate filed a lawsuit against both the hospital and emergency room doctors for negligence.

The hospital insists it cannot be held liable for treatment provided by the emergency room doctors, as they were independent contractors. Florida’s Third District Court of Appeal agreed in a ruling earlier this year. However, this ruling conflicts with one by Florida’s Fourth District Court of Appeals in a similar case.

The Florida Supreme Court has agreed to review the conflict, but has yet to set a date for oral arguments. Continue reading

“Can I Sue for Midwife Malpractice in Florida?”

November 16, 2019 | by David J. Halberg, Esq.

GateHouse Media recently reported on the trend of more expectant mothers deciding to give birth outside of a hospital, with labor and delivery overseen with a midwife or doula. Many mothers who choose this route say it is a rejection of the sterile and sometimes impersonal experience of a hospital maternity ward, with through-the-roof cesarean section rates, over-prescribed cocktails of powerful pain medications and a hangover of hospital bills. midwife malpractice

But birth outside of a hospital setting has its own costs. GateHouse reports that just in Sarasota County, 1 in 3 home and birth center deliveries ended at a local hospital. Doctors and paramedics say often by the time they are transferred to a hospital, the women have been in labor for three or four days. They’re scared, exhausted, fevered and have higher rates of infection.

Although midwives and birthing centers point to the many successful deliveries they’ve overseen, the problem is that labor in itself is known to be incredibly risky. When something goes wrong, midwives and birthing centers may be unprepared to handle it. Continue reading

Florida Supreme Court Asked to Revisit Medical Malpractice “Crisis,” Constitutional Challenges

October 18, 2019 | by David J. Halberg, Esq.

A state appellate court has urged the Florida Supreme Court to revisit whether a largely-debunked medical malpractice insurance “crisis” still justifies limiting damages in certain medical malpractice wrongful death lawsuits. The request, posed as a question of great public importance, stems from the Fla. 2nd DCA’s reluctant dismissal of a medical malpractice wrongful death lawsuit filed by the adult children of a woman who died after a missed diagnosis of lung cancer. Naples medical malpractice lawyer

The case raises constitutional equal protection concerns because the practical effect is that negligent doctors and healthcare providers cannot be held to account if their patient dies with no minor children or surviving spouse. Adult children (over age 25) of medical malpractice victims who die are not entitled to collect non-economic damages. (Non-economic damages are monetary compensation for intangible losses like as pain and suffering, loss of life enjoyment, loss of consortium, etc.)

This all started some 30 years ago, when Florida lawmakers, heavily courted by insurance industry lobbyists, enacted Florida State Statute 768.21 as a means of remedying “skyrocketing insurance costs” that were reportedly causing doctors to decline performing high-risk procedures and flee the state and the profession, forcing the closure of emergency rooms and other healthcare facilities. In 2000, the Florida Supreme Court cited this law – and the purported “crisis” legislators had used to rationalize it – to prevent the surviving adult children plaintiffs in Mizrahi v. North Miami Medical Center from recovering non-economic damages for their parent’s medical malpractice death. Continue reading

Nurse Drops Patient: Medical Malpractice or Ordinary Negligence?

August 21, 2019 | by David J. Halberg, Esq.

Lifting patients is a common – and extremely dangerous – duty of nurses in all different settings. Those in hospitals, nursing homes, urgent care and surgery centers are typically required to follow certain protocol when they do lift to reduce the chances of. Unfortunately sometimes due to short-staffing and lack of training, those safe-lifting protocols aren’t followed.

The question recently before Florida’s Fourth District Court of Appeal was whether a lawsuit centering on injury resulting when a nurse dropped a patient she was lifting could be categorized as ordinary negligence or if it fell under the umbrella of medical malpractice. medical malpractice lawyer

Why would this matter? Because Florida medical malpractice lawsuits are a whole lot tougher. Per Florida statute section 766.106., plaintiffs must meet a higher proof burden (deviation from the applicable standard of care – proven only with expert witness testimony – versus the mere absence of reasonable care where one had a duty, as is the case for ordinary negligence).

Because of the additional requirements for medical malpractice cases, it’s generally in the plaintiff’s best interest to file a claim as one of ordinary negligence if that is a possibility. And the truth is, not all injuries that occur in a hospital are medical malpractice, but the lines aren’t always obvious. Continue reading

Failure to Treat Preeclampsia Results in $230M Medical Malpractice Verdict

July 15, 2019 | by David J. Halberg, Esq.

A renowned hospital in Baltimore has been ordered to pay $230 million for allegedly causing a severe birth injury, according to plaintiffs. Medical malpractice attorneys understand this case involved failure to abide the standard of care for that profession, allegedly causing severe birth injury. birth injury attorney

The verdict includes:

$3.6 million in prior medical expenses;
$1 million in lost earnings
$25 million in non-economic damages (pain and suffering, loss of consortium, etc.)
$200 million in future damages

In Byrom v. Johns Hopkins Bayview stemmed from allegations that doctors and nurses at the hospital gave the child’s 16-year-old mother inaccurate information about the seriousness of the outcome after she was diagnosed with preeclampsia. This, plaintiff attorneys alleged, resulted in the teen mother’s decision to undergo a vaginal delivery – unmonitored – rather than a C-section she should have undergone. Continue reading

Florida Medical Malpractice Appeals Lawyer: The Ongoing Fight for Fair Damages

June 30, 2019 | by David J. Halberg, Esq.

Florida medical malpractice appeals attorneys recognize that cases aren’t necessarily over just because the trial is. Even with cases that end in pre-trial settlement, that may not always be the last word. West Palm Beach medical malpractice lawyer

Although no one on our end is eager to drag matters on longer than necessary (we are paid on a contingency basis, not by the hour), we recognize the importance of appellate courts in ensuring accuracy in the trial courts. Very few cases ever make it to the Florida Supreme Court or the U.S. Supreme Court. Appeals courts do not hear your medical malpractice case all over again, but rather review the issues raised by one or both parties to be sure all laws and legal procedures were fairly applied by the trial court.

Important to note: If your attorney failed to raise important points of contention first to the trial court, the opportunity to present it on appeal may be lost. That’s why carefully choosing an experienced medical malpractice legal team is important. Continue reading